In Easton v. Chen, the Plaintiff was injured in a motor vehicle accident, and consequently advanced an ICBC claim for damages. Formal legal proceedings were commenced, and a trial date was eventually set. The Plaintiff had also been involved in four prior motor vehicle accidents, with all four ICBC claims settling before the trial of the current action.
Prior to trial, ICBC’S lawyer made an application for production of documentation from the four prior accidents, including Examination for Discovery transcripts and expert reports, on the basis that the Plaintiff’s injuries were indivisible in nature. Counsel for the Plaintiff refused to produce the documentation, thus necessitating a court application.
Counsel for the Plaintiff took the position that the Plaintiff had recovered from the injuries sustained in the prior accidents, and that the injuries were divisible in nature. As such, counsel for the Plaintiff argued that the documentation sought by ICBC’S lawyer was not relevant. Counsel for the Plaintiff took issue with the fact that ICBC’S lawyer in an amended list of documents had listed certain documentation prepared by or submitted to ICBC in the prior actions, taking the position that this breach the implied undertaking of confidentiality.
The Court, however, drew a distinction in that such documents were never subject to the implied undertaking of confidentiality, as they were not produced by the Plaintiff under the compulsion of litigation. The Court also pointed out the similarity of injuries between the case at bar, and the prior actions.
The Court would order that the documentation be produced, and that it would be in the interests of justice to relieve against the implied undertaking of confidentiality.
 The defendant also relies on Juman v. Doucette, 2008 SCC 8 at para. 35 and Joubarne v. Sandes, 2009 BCSC 1413 at paras. 20 – 26 in support of his position that the implied undertaking should, in any event, be lifted in cases such as this.
 In Joubarne, Mr. Justice Williams held:
 In the present case, the discoveree is the plaintiff. Furthermore, the claim in the employment litigation encompassed issues including her employment history, fitness and performance in her employment, as well as health issues that may have impacted on her performance. In the present action, the plaintiff advances claims for loss of earnings and loss of capacity. She alleges that the accident resulted in her developing a driving anxiety and depression as well as loss of enjoyment of life and permanent physical disability. There is, as well, a temporal proximity.
 In my view, it is reasonable to conclude that the examination for discovery transcript in the earlier proceeding is likely relevant to the issues in the personal injury action. Furthermore, in the circumstances, there is no bar at law to preclude those materials from production and the court has a discretion to relieve against the implied undertaking and to order disclosure.